STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT I
_________________________________________
Appellate Case No. 2009 AP 2835-CR
Milwaukee County Case No. 2006 CF 4929
STATE OF WISCONSIN,
Plaintiff-Respondent,
vs.
CHRISTOPHER D. JONES,
Defendant-Appellant.
NON-PARTY BRIEF OF AMICUS CURIAE
THE INNOCENCE NETWORK
On Appeal from the Judgment of Conviction
and the Final Orders Entered in the
Circuit Court for Milwaukee County, the
Honorable Daniel L. Konkol, Circuit Judge, Presiding
Respectfully Submitted,
THE INNOCENCE NETWORK
Jerome F. Buting, SB #1002856
Counsel for Amicus Curiae
Address:
400 N. Executive Dr., #205
Brookfield, WI 53005
(262) 821-0999 Fax: (262) 821-5599
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
B.
FIREARM AND TOOLMARK EVIDENCE IS NO
L O N G E R S U F F IC IE N T L Y R E L IA B L E T O B E
ADMISSIBLE UNDER WISCONSIN LAW.. . . . . . . . . . . . . . . . 2
1.
Wisconsin law on the admissibility of expert
testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.
Recent Developments Concerning the
Admissibility and Probative Value of
Ballistics Evidence at Trial . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.
Testimony from the State’s Examiner
was not Helpful to the Trier of Fact . . . . . . . . . . . . . . . . 10
THIS COURT SHOULD LIMIT THE MANNER IN
WHICH A BALLISTIC OPINION IS EXPRESSED SO
THAT THE JURY IS NOT MISLED BY FALSE
PRETEN SIO N S THA T SUC H O PIN IO N S ARE
INFALLIBLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-i-
TABLE OF AUTHORITIES
Wisconsin Cases Cited
State v. Dean,
103 Wis. 2d 228, 307 N.W.2d 628 (1981) . . . . . . . . . . . . . . . . . . . 3
State v. Steele,
97 Wis. 2d 72, 294 N.W.2d 2 (1980) . . . . . . . . . . . . . . . . . . . . . . . 3
State v. Walstad,
119 Wis. 2d 483, 351 N.W.2d 469 (1984) . . . . . . . . . . . . . . . . . . . 2
Other Cases Cited
United States v. Glynn,
578 F. Supp.2d 567, 569-70 (S.D. N.Y. 2008) . . . . . . . . . . 8, 12, 13
United States v. Green,
405 F.Supp.2d 104 (D. Mass. 2005), . . . . . . . . . . . . . . . . . . . . 9, 14
United States v. Monteiro,
407 F.Supp.2d 351, 355 (D.Mass.2006) . . . . . . . . . . . 7, 8, 12, 13
United States v. Taylor,
663 F.Supp.2d 1170, 1179 (D.N.M 2009) . . . . . . . . . . . . . . . . . . 14
Other Authorities 1
Association of Firearm and Toolmark Examiners (AFTE) Glossary
Definitions, Theory of Identifications as it Relates to Toolmarks,
AFTE J. VOL. 30 NO. 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1
All of the “other authorities” referenced in this Brief were filed in the trial court
below and can be found in the Record on Appeal.
-ii-
Biasotti, Afred A., A Statistical Study of the Individual Characteristics of
Fired Bullets,
4 J. Forensic Sci. 34 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Blinka, Daniel, WISCONSIN PRACTICE SERIES: WISCONSIN
EVIDENCE
§702.4 (3rd ed. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Dutton, Gerard, Commentary: Ethics in Forensic
Firearms Investigation, 37(2)
AFTE J. 79 (Spring 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
National Research Council, Committee on Identifying the Needs of the
Forensic Science Community,
Strengthening Forensic Science in the United States:
A Path Forward, ( 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
National Research Council, Committee to Assess the Feasibility,
Accuracy, and Technical Capability of a National Ballistic Database,
Ballistics Imaging (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nichols, Ronald Defending the Scientific Foundations of the Firearms and
Toolmark Identification Discipline: Responding to Recent Challenges,
52(3) J. Forens. Sci. 586 (May 2007) . . . . . . . . . . . . . . . . . . . . . . 10
Schwartz, Adina, A Systemic Challenge to the Reliability and Admissibility
of Firearms and Toolmark Identification,
6 Columbia Science and Tech. L. Rev. 2 (2004-05) . . . . . . . . . . 5
-iii-
INTRODUCTION
One of the issues in this appeal concerns the question of whether
firearm and toolmark evidence should be admissible under Wisconsin’s
test for expert testimony. Cf., Defendant’s Brief at 4-8; State’s Response
Brief at 2-8. Although for decades the reliability, probative value, and
therefore relevance, of ballistics evidence was accepted by courts
almost without question, that is no longer the case.
Several courts have now concluded that ballistics evidence no
longer warrants the moniker of “science,” and they have placed limits
on the opinions that may be expressed at trial. As discussed in this
brief, these courts hold that if a ballistics opinion is offered at trial the
examiner is not permitted to express that opinion to a reasonable
degree of “scientific certainty,” or to proclaim that he or she is “100
percent sure of a match,” or that a match could be made “to the
exclusion of all other guns” in the world.
The National Academy of Sciences has weighed in as well, and
several thorough reports now give serious cause for concern about the
type of testimony used in Mr. Jones’ case, where the State’s examiner
was permitted to express his opinion to a professional certainty that the
bullet and casing recovered at the crime scene could have come from
1
no other gun in the world, and that there was “no error rate” for his
conclusion. (R. 96: 89, 91, 95).
At a minimum, if this Court concludes that ballistic firearm and
toolmark evidence is admissible under Wisconsin law, this Court
should place appropriate limits on the examiner’s opinions that may be
presented at trial so as to avoid the possibility of misleading a jury as
to the weight that should be accorded ballistics evidence.
A.
FIREARM AND TOOLMARK EVIDENCE IS NO LONGER
SUFFICIENTLY RELIABLE TO BE ADMISSIBLE UNDER
WISCONSIN LAW.
1.
Wisconsin law on the admissibility of expert testimony.
The Amicus believes the parties’ briefs adequately discuss the
legal standards in Wisconsin on the admissibility of scientific testimony
at trial, so that will not be repeated here. The Amicus recognizes that
Wisconsin is not a Daubert jurisdiction, like the federal courts, and that,
instead, the general rule of relevance controls the admissibility of
scientific or expert testimony. See State v. Walstad, 119 Wis. 2d 483, 519,
351 N.W.2d 469 (1984). However, the Amicus disagrees with the State’s
assertion that the trial court may not act as a gatekeeper to exclude
certain types of so-called scientific or technical evidence from trial.
2
Under Wisconsin law the proposed evidence must still meet the
relevance test, i.e. that it is probative and will assist, not confuse, the
trier of fact. Id. In this sense, the trial court does properly act as
gatekeeper to exclude the improper use of technical evidence at trial,
and in some instances Wisconsin courts have excluded certain types of
technical evidence. See State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628
(1981) (court rejected polygraph evidence in part because, “the legal
and scientific communities remain significantly divided on the
reliability and the usefulness of the polygraph,” because subjective
opinion is crucial to the end result of polygraphs); and State v. Steele,
97 Wis. 2d 72, 294 N.W.2d 2 (1980) (psychiatric testimony not permitted
on defendant’s capacity to form intent when based on mental health
history because of substantial doubt that it was scientifically sound and
probative ).
Similarly, the time has come to reconsider the admissibility of
firearm and toolmark evidence given the growing body of authorities,
scientific and legal, which raise doubts about its reliability and
probative value.
3
2.
Recent Developments Concerning the Admissibility and
Probative Value of Ballistics Evidence at Trial.
In 2008, a report by the National Research Council expressed
serious concern about the lack of scientific data supporting the type of
firearm opinion evidence used at trial in this case. That NRC report
observed that, “[t]he validity of the fundamental assumptions of
uniqueness and reproducibility of firearms-related toolmarks has not
yet been fully demonstrated.”See The National Academy of Sciences,
National Research Council, Committee to Assess the Feasibility,
Accuracy, and Technical Capability of a National Ballistic Database,
Ballistics Imaging (2008), at 81 (hereinafter NRC Ballistic Imaging
Report). The study cautioned that, “[a]dditional general research on the
uniqueness and reproducibility of firearms-related toolmarks would
have to be done if the basic premises of firearms identification are to be
put on a more solid scientific footing.“ Id. at 82.
Then, just last year, another study by the National Research
Council, Committee on Identifying the Needs of the Forensic Science
Community, Strengthening Forensic Science in the United States: A Path
Forward, (2009) (hereinafter NRC Forensic Science Report), reported
that serious and substantial uncertainties exist with the type of ballistic
4
evidence used at the trial in Mr. Jones’ case, because of a “lack of a
precisely defined process,” or any specific protocol. Id. at 5-21,
(R61:104).
The basic premise of ballistics theory is that certain “toolmarks”
found on bullets or casings can be linked to particular types of guns
and compared to one specific gun. Toolmarks are either striated
toolmarks consisting of patterns of scratches of striae produced by the
parallel motion of tools against objects (e.g., the marks the barrel of a
gun produces on fired bullets) or impression toolmarks produced on
objects by the perpendicular pressurized impact of tools (e.g., breech
face marks that the breach face of a gun produces on fired casings).
Both types of toolmarks have class, subclass, and individual
characteristics. See Adina Schwartz, A Systemic Challenge to the
Reliability and Admissibility of Firearms and Toolmark Identification, 6
Columbia Science and Technology Law Review 2, 4 (2004-05) (R. 61:
61).
Class characteristics are the distinctive features shared by many
items of the same type, for example the number of grooves cut into the
barrel of a gun and the direction of the “twist” in those grooves. NRC
5
Forensic Science Report at 5-19, (R61:102). Sub-class characteristics are
those common to a group of firearms produced by the manufacturing
process, for example, when the barrel rifling of a batch of firearms is
done by the same worn or dull tool. Id.
Individual characteristics are the fine microscopic markings that
are said to be unique to a particular firearm. Id. However, the NRC
Ballistic Imaging Report concluded that this premise of uniqueness has
not been scientifically established: “A significant amount of research
would be needed to scientifically determine the degree to which
firearms-related toolmarks are unique or even to quantitatively
characterize the probability of uniqueness.” NRC Ballistic Imaging
Report at 3.
The 2009 NRC Forensic Science Report also criticized the lack of
research that has been conducted to support ballistic examiners’
methods. “Because not enough is known about the variabilities among
individual tools and guns, we are not able to specify how many points
of similarity are necessary for a given level of confidence in the result.”
NRC Forensic Science Report at 5-21, (R61:104). In short, in firearm and
toolmark evidence, there are simply no objective criteria for declaring
6
a match, and likewise, no clear rule for declaring a non-match. Unlike
fingerprint and DNA evidence, there is no rule by which an examiner
can declare an exclusion if there is a single difference between two
samples. Instead, examiners focus on finding similarities, while
dismissing or ignoring dissimilar characteristics.
The AFTE has tried to provide a definition for when an examiner
can conclude there is a match because of “agreement similarities,” but
it is so circular that it is of little value. See Association of Firearm and
Toolmark
Examiners
(AFTE)
Glossary
Definitions,
Theory
of
Identifications as it Relates to Toolmarks, AFTE J. VOL. 30 NO. 1
(1998),(R61:105-107) (must be “sufficient agreement” in the pattern of
two sets of marks which “exceeds the best agreement demonstrated
between tool marks known to have been produced by different tools
and is consistent with the agreement demonstrated by tool marks
known to have been produced by the same tool”). The NRC found this
definition lacked specificity and forced examiners to rely on their own
subjective experience. NRC Forensic Science Report at 5-21, (R61:104).
See also United States v. Monteiro, 407 F.Supp.2d 351, 369-70
(D.Mass.2006), (recognizing that the AFTE Theory “leaves much to be
7
desired...it is not a numeric or statistical standard, but is based on the
individual examiner’s expertise”).
Equally troubling in this case is the fact that the State’s examiner
drastically overstated the reliability of his identification by testifying
that there is “no error rate.” (R96:95). “A perfect correspondence
between the lines on a test fired cartridge and the evidence recovered
from the scene is impossible; in the real world, there is no such thing as
a ‘perfect match.’” Monteiro, 407 F.Supp. 2d at 362, (R61:126), citing
Afred A. Biasotti, A Statistical Study of the Individual Characteristics of
Fired Bullets, 4 J. FORENSIC SCI. 34, 44 (1959), (R107). Indeed,
absolutist claims of perfect accuracy without errors “has hampered
efforts to evaluate the usefulness of the forensic science disciplines.”
NRC Forensic Science Report at 1-10, (R107). See also United States v
Glynn, 578 F. Supp.2d 567, 574 (S.D. N.Y. 2008), (criticizing the
tendency of ballistics experts who “make assertions that their matches
are certain beyond all doubt, that the error rate of their methodology
is ‘zero,’ and other such pretensions”).
On top of all of these problems, is the additional problem of
confirmation bias. Firearm toolmark examiners are given the answer
8
before being asked the question. Judge Gertners’ description of the
examination in United States v. Green, 405 F.Supp.2d 104 (D. Mass.
2005), is true of the examination done in Mr. Jones’ case:
The only weapon [the examiner] was shown was the
suspect one; the only inquiry was whether the shell
casings found earlier matched it. It was, in effect, an
evidentiary ‘show-up,’ not what scientists would regard
as a ‘blind’ test. [The examiner] was not asked to try to
match the casings to the other test-fired Hi Point weapons
in police custody, or any other gun for that matter, an
examination more equivalent to an evidentiary ‘line-up.’
His work was reviewed by another officer, who did the
same thing -- checked his conclusions under the same
conditions -- another evidentiary ‘show-up.’
405 F.Supp.2d at 107-08.
Confirmation bias exists particularly in firearm and toolmark
identification because the only matches peer reviewed are those in
which the examiner makes a positive identification. “[I]f the expert
doing the check only ever checks positive matches, then his perception
will be that whenever he sits at the microscope to conduct a peer
review of casework, he will expect to see a positive match!” Gerard
Dutton, Commentary: Ethics in Forensic Firearms Investigation, 37(2) AFTE
J. 79, 82 (Spring 2005), (R107).
9
Thus, for all of these reasons, an opinion like that offered by the
examiner in this case should no longer be considered probative,
relevant or admissible in Wisconsin. There is no more scientific basis to
support a ballistics examiner’s claim that a bullet came from “no other
gun in the world” than there is to support polygraph results, which are
deemed of so little probative value as to be inadmissible under
Wisconsin’s relevance rules.
3.
Testimony from the State’s Examiner was not Helpful to
the Trier of Fact.
In addition to a lack of probative value, the evidence here fails
the second test in Wisconsin, that it assist the trier of fact. If there is
such disagreement among the scientific community and the firearm
and toolmark identification community over what constitutes a match,
how can testimony from any firearm and toolmark examiner be helpful
to the trier of fact?
One of the best known apologists for the firearm and toolmarks
field acknowledges that examiners in different parts of the United
States are likely to develop different conceptions of what does or does
not constitute a “match,” because different training materials are used
as a baseline for comparison. Ronald Nichols, Defending the Scientific
10
Foundations of the Firearms and Toolmark Identification Discipline:
Responding to Recent Challenges, 52(3) J. Forens. Sci. 586, 590 (May 2007),
(R61:189). If two different examiners from two different states can
arrive at two different answers regarding a match, then the testimony
is not helpful at all, and jurors are better off drawing their conclusions
based on the eye witnesses and police witnesses rather than evidence
which is so disputed in its own field.
The AFTE seems to fall back on the position that if two different
examiners disagree, then it should be left to the jury to decide. Id. at
590. But where examiners within the discipline cannot agree on the
objective criteria for resolving disputes about whether in fact there is
a match, then the jurors are just as equipped as the examiners to make
their own conclusions. Testimony from an examiner within a discipline
that is so riddled with problems cannot possibly be helpful to the jury.
See Daniel Blinka, WISCONSIN PRACTICE SERIES: WISCONSIN
EVIDENCE §702.4 at 588-89 (3rd ed. 2008) (“expert testimony that
amounts to no more than the witness’s ipse dixit (‘because I said so’)
may be excluded on grounds that it is insufficiently helpful because the
witness cannot articulate how he reached his conclusion”).
11
In addition, the examiner in this case failed to document those
toolmarks which formed the basis of his opinion. The very same
deficiency caused the court in United States v. Monteiro, to rule the
examiner’s opinion inadmissible. The court found that the expert’s
methodology lacked adequate documentation because his reports said
only that there was a “positive ID.” 407 F.Supp.2d at 374, (R61:143). The
AFTE guidelines require examiners to “document identifications by
notes, sketches, or photographs.” Id. at 374. Because the expert took no
photographs and made no drawings of his observations, the basis for
identification was not “reproducible and verifiable,” and the evidence
was inadmissible. Id.
Likewise, in Mr. Jones’ case, the State’s examiner simply declared
that there was a positive ID without describing, photographing or
diagraming the striations upon which he based his conclusion. These
failures deprived the jurors of any chance to compare the markings
themselves, or to
evaluate the truthfulness of the State witness’s
assertions. It forced the jury to simply trust him. See also, United States
v. Glynn, 578 F.Supp.2d at 574, fn 13 (witness failed to document
conclusions thereby depriving jury of ability to evaluate testimony).
12
The Amicus believes undocumented testimony of the sort
presented in Mr. Jones’s case is not only unhelpful, but it misleads a
jury, and this Court should rule such evidence inadmissible.
B.
THIS COURT SHOULD LIMIT THE MANNER IN WHICH A
BALLISTIC OPINION IS EXPRESSED SO THAT THE JURY
IS NOT MISLED BY FALSE PRETENSIONS THAT SUCH
OPINIONS ARE INFALLIBLE.
Those federal district courts which have recently examined the
issue now question the routine admission of firearm and toolmark
identification evidence, and they have placed limits on the type of
opinion that may be expressed to a jury. In United States v. Glynn, the
court concluded that ballistics lacked the rigor of science and that to
allow any “ballistics examiner...to testify that he had matched a bullet
or casing to a particular gun ‘to a reasonable degree of ballistic
certainty’ would seriously mislead the jury.” Therefore, the court held
that “ballistics opinions may be stated in terms of ‘more likely than
not,’ but nothing more.” 578 F.Supp.2d at 574, 575.
Likewise, in United States v. Monteiro, the court noted “there is no
reliable statistical or scientific methodology which will currently permit
the expert to testify that it is a ‘match’ to an absolute certainty, or to an
arbitrary degree of statistical certainty.” 407 F.Supp.2d at 372. The court
13
therefore ruled that “an expert may not assert any degree of statistical
certainty, 100 percent or otherwise, as to a match.” Id. at 373. Other
courts have reached similar conclusions. See United States v. Green, 405
F.Supp.2d at 124 (court did not allow an examiner to testify that the
match excluded “all other guns”); United States v. Taylor, 663 F.Supp.2d
1170, 1179 (D.N.M 2009) (ballistics examiner precluded from “stating
that he can conclude that there is a match to the exclusion, either
practical or absolute, of all other guns”).
Similarly, if this Court finds ballistic comparison evidence to be
admissible, then it should adopt guidelines and limitations on the
opinions that may be offered by such purported experts in the field.
Drawing on the examples from the federal courts, the Amicus suggests
that this Court order that in any future cases where ballistics opinion
evidence is offered, the expert (1) may not be permitted to express an
opinion that the field of ballistics, firearm and toolmark comparison
identification is infallible, or has an error rate of zero, or any similar
such pretension; (2) may not be permitted to express an opinion to a
reasonable “scientific” or “professional” certainty; (3) may express only
an opinion that it is “more likely than not” that a particular
14
identification is made; and (4) may only present opinion testimony to
the jury if the witness is prepared to show (by photographs, video or
other visual representations) what specific markings are being relied
upon in reaching the opinion.
CONCLUSION
New evidence by respected authorities, including the National
Academy of Sciences, demonstrates the serious flaws within the field
of firearm and toolmark evidence. This Court should take steps to
protect the truth-finding of juries and to lessen the risk of wrongful
convictions as a result of unreliable, and ultimately non-probative,
evidence. The sort of ballistics opinion testimony used in this case
should be ruled inadmissible, and appropriate limitations on such
testimony should be imposed if it is admitted in future cases.
Dated at Brookfield, Wisconsin, this 30th day of March, 2010.
Respectfully submitted,
THE INNOCENCE NETWORK,
amicus curiae
By:_______________________________
Jerome F. Buting
State Bar No. 1002856
15
Post Office Address:
400 N Executive Dr., Suite 205
Brookfield, WI 53005-6029
(262) 821-0999
(262) 821-5599 FAX
c:\jfb\march2010\Statev.Jones Amicus final.w pd
16
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT I
_________________________________________
Appellate Case No. 2009 AP 2835-CR
Milwaukee County Case No. 2006 CF 4929
STATE OF WISCONSIN,
Plaintiff-Respondent,
vs.
CHRISTOPHER D. JONES,
Defendant-Appellant.
CERTIFICATION AS TO FORM AND LENGTH
I certify that this brief meets the form and length requirements
of Wis. Stat. § 809.19 (8)(b) and (c) for a brief produced in a
proportional serif font. The length of the brief is 2943 words.
Dated this 30th day of March, 2010.
Signed:
____________________________
Jerome F. Buting
State Bar No. 1002856
17